McTear v Imperial Tobacco Ltd 2005 2 SC 1

The widow of a man who died from lung cancer sued a tobacco manufacturer for negligence. The court dismissed the claim, finding she had failed to prove that any breach of duty by the company caused her husband to smoke.

Facts

The pursuer, Mrs McTear, brought an action for damages against the defender, Imperial Tobacco Ltd, following the death of her husband, Mr McTear, from lung cancer in 1993. Mr McTear began smoking in 1964 as a teenager and became a heavy smoker, consuming approximately 20 John Player cigarettes per day. He continued to smoke until his death. The pursuer claimed that the defender was negligent and in breach of a duty of care owed to her husband. The alleged breach was a failure to adequately research the health risks of smoking, a failure to warn consumers (specifically Mr McTear) of those risks, and the continued marketing of a dangerous product. The case was the first of its kind in Scotland to proceed to a full proof (trial).

Issues

The central legal issue was causation. The court had to determine whether the pursuer had proved, on the balance of probabilities, a causal link between the defender’s alleged negligence and Mr McTear’s death. This involved several key sub-issues:

Causation in Fact

Would Mr McTear have decided against smoking, or stopped smoking, if the defender had acted differently (e.g., by providing explicit warnings earlier)? This required an assessment of what Mr McTear knew about the risks of smoking and what his likely reaction to a warning would have been.

Duty of Care

Did the defender owe a duty of care to consumers like Mr McTear? If so, when did this duty arise, and what was its scope? The court considered whether a duty to warn existed before mandatory government warnings were introduced.

Breach of Duty

If a duty of care was established, did the defender’s failure to warn Mr McTear prior to the 1970s, and their continued sale of cigarettes, constitute a breach of that duty?

Judgment

Lord Nimmo Smith, in the Court of Session, granted decree of absolvitor in favour of the defender, dismissing the pursuer’s claim entirely. The judgment hinged on the pursuer’s failure to prove causation.

The court found that there was significant evidence that the health risks associated with smoking were a matter of general public knowledge from the 1950s onwards, even if the precise scientific mechanisms were not fully understood by the public. Based on the evidence about Mr McTear’s personality and behaviour, Lord Nimmo Smith concluded that he was not a man who was easily influenced and would likely have smoked regardless of any warnings the defender might have provided. Crucially, the pursuer failed to establish that Mr McTear was unaware of the risks or that a warning would have altered his decision to smoke.

In his opinion, Lord Nimmo Smith stated:

I wish to make it clear at the outset that my decision is based on my consideration of all the evidence which was led before me. What I have to decide is whether the pursuer has proved her case, not whether, as a matter of generality, smoking causes lung cancer or whether the product supplied by ITL is a defective one.

On the critical issue of causation, the judge found the pursuer’s evidence to be insufficient:

In these circumstances, it having been conceded on behalf of the pursuer that she not only had to prove that Mr McTear was unaware of the health risks of smoking but also had to go on and prove that, had he been aware, he would not have smoked, I hold that the pursuer has failed to prove that any breach of duty on the part of ITL caused Mr McTear’s smoking.

The court therefore concluded that even if the defender had been in breach of a duty of care, the pursuer had not proven that this breach caused the harm. As the chain of causation was broken, it was unnecessary for the court to make definitive findings on the other issues, such as the existence and scope of the duty of care itself. The claim was dismissed on this factual basis.

Implications

The decision in McTear was a landmark ruling in UK product liability law, particularly in the context of tobacco litigation. It established an extremely high evidentiary hurdle for claimants seeking to sue tobacco companies for historical negligence. The judgment demonstrated the profound difficulty in proving what a deceased person knew decades earlier and how they might have behaved differently under hypothetical circumstances. By focusing heavily on the individual’s choice and knowledge, the court placed a heavy burden of proof on the pursuer to overcome the defence that the smoker voluntarily assumed the risk. The case set a significant precedent in Scotland and the wider UK, effectively discouraging similar litigation for many years by highlighting the immense challenges in establishing causation.

Verdict: The court granted decree of absolvitor, finding in favour of the defenders (Imperial Tobacco Ltd) and dismissing the pursuer’s claim.

Source: McTear v Imperial Tobacco Ltd 2005 2 SC 1